이사 선․해임에 관한 의결권구속계약의 효력과 이행확보에 관한 비교법적 연구- 서울중앙지방법원 2024. 5. 30.자 2024카합20635 결정을 대상으로 하여 -

This article examines ways to secure the validity and enforcement of a shareholders’ voting agreement for the election and removal of directors, using the case of a management dispute between Min Hee-jin, the CEO and minority shareholder of Adore Co., Ltd., and Hive Co., Ltd., the largest shareholder of Adore, which drew public attention in 2024. Korean general theory and precedents divide the effectiveness of a shareholders’ voting agreement for the election and removal of directors into validity between the parties and binding on the company, recognizing the bonding effect between the parties but not binding on the company. On the other hand, courts recognize the binding effect of voting agreements between the parties and recognize claims for enforcement, prohibition, and compensation in the event of a violation of the voting agreement. However, it does not recognize the defect of the shareholders' meeting resolution because it is considered valid even if the voting rights are exercised in violation of the voting agreement. This means that invalid claims are not recognized. However, in the case of a voting agreement in which all shareholders participate, it is possible to treat the exercise of voting rights in violation of the voting agreement as a violation of the articles of association, considering that the articles of association are the company's autonomous laws. In addition, the Tokyo High Court recently ruled in Financial and Commercial Case No. 1592 of January 22, 2020 that if all shareholders are parties to a voting agreement, the exercise of voting rights in violation of the agreement can be considered a violation of the articles of incorporation. Furthermore, the Tokyo High Court in Financial and Commercial Case No. 1592 of January 22, 2020 ruled that the legal effect of a voting agreement is not uniformly valid or invalid, but rather that the legal effect of a voting agreement depends on the intention of the parties and the content and extent of the agreement. Professor Egashiro Kenjiro argues that the legal effect should be viewed differently based on the above precedents, taking into consideration the background of the voting agreement, and it is worth noting that the effect of the voting agreement is not interpreted uniformly. In the case of a voting agreement in which all shareholders have participated, if the exercise of voting rights in violation of the voting agreement is treated as a violation of the articles of association, it may be possible to determine that the shareholders' meeting resolution is flawed and to cancel the shareholders' meeting resolution (Article 376 of the Commercial Act). In the future, we will have to wait for the accumulation of case law to determine how the legal theory on the binding effect of voting agreements on companies will be formed.